Miracle stay keeps Drakes afloat

By

Samantha Kimmey

01/30/2014

The fate of Drakes Bay Oyster Company rests in the hands of the justices of the United States Supreme Court.

The historic Point Reyes shellfish farm’s owners, employees and supporters might have thought a miracle occurred on Monday, when the Ninth Circuit Court of Appeals granted the farm’s plea for a 90-day stay so it might continue selling and canning shellfish while a team of lawyers submits an appeal to the high court.

The stay followed two distressing rulings for Drakes Bay from the same circuit court. A 2-1 ruling in September denied the farm an injunction so that it could remain open as it battled the Interior Department and National Park Service over a decision in Nov. 2012 to shutter the farm. (The same three judges this week signed the order for the stay.) A subsequent request for an en banc rehearing was denied earlier this month.

Farm owner Kevin Lunny said that despite those recent decisions, he was not surprised by this week’s news. “Nothing surprises me anymore because I don’t know what to expect. It’s all uncharted territory,” he said.

Stays are issued if all three of the following conditions are present: there is a reasonable chance that four Supreme Court justices would consider tackling the case, there is a significant possibility that the high court would reverse the lower court’s decision, and if “irreparable harm” would follow the denial of a stay.

The government filed a brief in opposition to the stay half an hour before the circuit court granted it. Federal lawyers wrote that not a single judge voted to rehear the case en banc, and argued that the petition to the high court was not likely to succeed because the circuit court’s decision was not a broad holding but a narrow decision about a single permit. Drakes Bay lawyer Peter Prows said the court must not have found those arguments persuasive.

Despite significant controversy and evidence that farm operations do not harm harbor seals residing in Drakes Estero, the government’s rebuttal also singled out the pinnipied’s pupping season as “an equitable factor that the court should consider” because of the farm’s motorboats.

Mr. Prows said the harbor seal reference riled him. “Here the feds go again saying the farm should be shut down to protect harbor seals from harm that wasn’t occurring. I thought that was kind of outrageous.”